Citation Nr: 0114037
Decision Date: 05/18/01 Archive Date: 05/23/01
DOCKET NO. 00-13 060 ) DATE
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On appeal from the
Department of Veterans Affairs Medical and Regional Office
Center in Sioux Falls, South Dakota
THE ISSUES
1. Entitlement to service connection for hypertension
secondary to nicotine dependence.
2. Entitlement to service connection for coronary artery
disease/myocardial infarction secondary to nicotine
dependence.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
ATTORNEY FOR THE BOARD
L. J. Nottle, Counsel
INTRODUCTION
The veteran served on active duty from December 1955 to
December 1958. His claim comes before the Board of Veterans'
Appeals (Board) on appeal from an October 1999 rating
decision of the Department of Veterans Affairs (VA) Medical
and Regional Office Center in Sioux Falls, South Dakota (RO).
The Board notes that the RO initially denied the veteran
service connection for a cardiovascular disorder, including
hypertension, and a myocardial infarction in September 1987
and March 1988, and the Board affirmed these denials in
August 1989. In January 1998, the veteran filed another
claim of entitlement to service connection for these
disorders based on the theory that they developed as a result
of in-service nicotine dependence. The veteran based his
argument on a change in the law that occurred after he filed
his initial claim. Therefore, his claims are considered new
and the submission of new and material evidence is not
required to reopen the previously denied claims. Spencer v
Brown, 17 F.3d 368, 372 (Fed. Cir. 1994) (holding that de
novo adjudication of a claim on essentially the same facts as
a previously and finally denied claim is not precluded where
an intervening and substantive change in law or regulation
creates a new basis for entitlement to the benefit).
The Board also notes that, in a rating decision dated October
1999, the RO deferred deciding the veteran's claim of
entitlement to service connection for peripheral vascular
disease. In her brief dated December 2000, the veteran's
representative indicates that the veteran continues to raise
this claim and wishes resolution thereof. This matter is
thus referred to the RO for appropriate action.
FINDINGS OF FACT
1. The RO has notified the veteran of the evidence needed to
substantiate his claims and has obtained and fully developed
all relevant evidence necessary for the equitable disposition
of those claims.
2. The veteran is service connected for nicotine dependence.
3. The medical evidence of record establishes that the
veteran's in-service nicotine dependence aggravated, but did
not cause, his hypertension, coronary artery disease and
myocardial infarction.
CONCLUSIONS OF LAW
1. Aggravation of the veteran's hypertension is proximately
due to his service-connected nicotine dependence. 38
U.S.C.A. §§ 1310, 5107 (West 1991), as amended by Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, §4, 114
Stat. 2096 (2000) (to be codified as amended at 38 U.S.C. §
5107); 38 C.F.R.
§§ 3.102, 3.303, 3.310 (2000); Allen v. Brown, 7 Vet. App.
439 (1995).
2. Aggravation of the veteran's coronary artery
disease/myocardial infarction is proximately due to his
service-connected nicotine dependence. 38 U.S.C.A.
§§ 1310, 5107 (West 1991), as amended by Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, §4, 114 Stat.
2096 (2000) (to be codified as amended at 38 U.S.C. § 5107);
38 C.F.R. §§ 3.102, 3.303, 3.310 (2000); Allen v. Brown, 7
Vet. App. 439 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The issues before the Board are whether the veteran is
entitled to service connection for hypertension, coronary
artery disease and a myocardial infarction secondary to
service-connected nicotine dependence. The RO denied these
claims in October 1999, and this appeal ensues from that
decision. During the pendency of this appeal, however, new
legislation was passed that enhances the VA's duties to
notify a claimant regarding the evidence needed to
substantiate a claim and to assist a claimant in the
development of a claim. See Veterans Claims Assistance Act
of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000).
The change in the law is applicable to all claims filed on or
after the date of enactment of the VCAA, or filed before the
date of enactment of the VCAA and which are not final as of
that date. VCAA, Pub. L. No. 106-475, § 7, subpart (a), 114
Stat. 2096, 2099 (2000).
Where the law or regulations change after a claim has been
filed or reopened but before the administrative or judicial
appeal process is completed, the version of the law or
regulations most favorable to the appellant applies unless
Congress provides otherwise. Karnas v. Derwinski, 1 Vet.
App. 308, 313 (1990). In this case, the RO has not developed
or considered the veteran's claims pursuant to the VCAA.
However, as explained below, prior to the enactment of the
VCAA, the RO took action that is consistent with the
notification and assistance provisions of the VCAA.
Therefore, the Board's decision to proceed in adjudicating
the veteran's claims does not prejudice the veteran in the
disposition thereof. See Bernard v. Brown, 4 Vet. App. 384,
392-94 (1993).
First, as required by the VCAA, in rating decisions dated
September 1998, February 1999 and October 1999 and in letters
dated September 1998, February 1999 and November 1999, the RO
notified the veteran of the evidence needed to substantiate
his claims and provided him an opportunity to submit such
evidence. See VCAA, Pub. L. No. 106-475, § 3(a), 114 Stat.
2096, 2096-97 (2000) (to be codified as amended at 38 U.S.C.
§§ 5102, 5103). Subsequently, the veteran and his
representative submitted multiple written statements and
medical opinions in support of the veteran's claims. In
addition, in its February 2000 statement of the case, the RO
notified the veteran of all regulations pertinent to service
connection claims, informed him of the reasons for which it
had denied his claims, and provided the veteran and his
representative an opportunity to present further argument in
support of these claims. The veteran and his representative
took advantage of this opportunity by subsequently submitting
written statements.
Second, as required by the VCAA, the RO assisted the veteran
in obtaining all evidence necessary for the equitable
disposition of his claims. See VCAA, Pub. L. No. 106-475, §
3(a), 114 Stat. 2096, 2097-98 (2000) (to be codified as
amended at 38 U.S.C. §§ 5103A). For instance, the RO secured
all evidence the veteran identified as being pertinent to his
claims and is not aware of any other outstanding evidence
that might substantiate these claims. In addition, the RO
afforded the veteran multiple VA examinations of the
disorders at issue, and during these examinations, a VA
examiner reviewed the entire claims file, performed
comprehensive evaluations, and offered opinions as to the
relationship between the disorders at issue and the veteran's
service-connected nicotine dependence.
In light of the foregoing, a Remand would serve no useful
purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546
(1991) (holding that strict adherence to legal requirements
does not dictate an unquestioning, blind adherence in the
face of overwhelming evidence in support of the result in a
particular case because such adherence would impose
additional burdens on the VA with no benefit flowing to the
veteran). In any event, due to the Board's favorable
disposition of the veteran's claims in this case, any
"error" to the veteran resulting from this decision is
harmless as it does not affect the merits of his claims or
his substantive rights related thereto. See 38 C.F.R. §
20.1102 (2000).
The veteran contends that his in-service nicotine dependence
caused him to smoke for many years, which in turn caused him
to develop hypertension, coronary artery disease and
myocardial infarction. In the alternative, the veteran
contends that his nicotine dependence aggravated, rather than
caused, his hypertension, coronary artery disease and
myocardial infarction. Based on the latter contention, the
veteran seeks service connection on a secondary basis under
Allen v. Brown, 7 Vet. App. 439 (1995).
Service connection may be granted for disability resulting
from injury or disease incurred in or aggravated by service.
38 U.S.C.A. § 1131 (West 1991); 38 C.F.R.
§ 3.303 (2000). Service connection may also be granted when
a claimed disability is found to be proximately due to or the
result of a service-connected disability, or when aggravation
of a nonservice-connected disorder is found to be proximately
due to or the result of a service-connected disability. 38
C.F.R. § 3.310(a) (2000); Harder v. Brown, 5 Vet. App. 183,
187 (1993); Allen, 7 Vet. App. at 448 (1995) (holding that,
pursuant to 38 U.S.C.A. § 1110 and § 3.310(a), when
aggravation of a veteran's nonservice-connected condition is
proximately due to or the result of a service-connected
condition, such veteran shall be compensated for the degree
of disability (but only that degree) over and above the
degree of disability existing prior to the aggravation).
On July 22, 1998, the President signed the Internal Revenue
Service Restructuring and Reform Act of 1998, Pub. L. No.
105-206, 112 Stat. 685, 865-66 (1998) (codified at 38
U.S.C.A. § 1103 (2000)). This law prohibits service
connection for death or disability resulting from an injury
or disability due to in-service use of tobacco products by a
veteran. However, it applies only to claims filed after June
9, 1998. As the veteran in this case filed his claim in
January 1998, the new law does not affect the disposition of
this appeal.
In February 1993, VA General Counsel (VAGC) issued an opinion
addressing when benefits may be awarded based upon in-service
tobacco use. VAGC indicated that direct service connection
may be granted if the evidence shows injury or disability
resulting from tobacco use in service. VAOPGCPREC 2-93, 58
Fed. Reg. 42,756 (1993). In June 1993, VAGC clarified that
its February 1993 opinion did not mean that service
connection will be established for a disability related to
tobacco use if the affected veteran smoked in service.
Rather, it means that any disability allegedly related to
tobacco use that is not diagnosed until after service would
not preclude establishment of service connection. VAGC held
that the claimant must demonstrate that the disability
resulted from the use of tobacco during service, and the
adjudicator must take into consideration the possible effect
of smoking before and after service.
In May 1997, VAGC issued an opinion addressing when service
connection may be granted for disability or death due to
nicotine dependence caused by in-service tobacco use. VAGC
indicated that secondary service connection may be granted if
the following three questions can be answered affirmatively:
(1) whether nicotine dependence may be considered a
disability for purposes of the laws governing veterans'
benefits; (2) whether the veteran acquired a dependence on
nicotine in service; and (3) whether that dependence may be
considered the proximate cause of disability or death
resulting from the use of tobacco products by the veteran.
VAOPGCPREC 19-97, 62 Fed. Reg. 37,954 (1997).
In a May 1997 memorandum, the Under Secretary for Health
found that nicotine dependence may be considered a disability
for VA compensation purposes. Therefore, pursuant to the
above opinions, in order to establish entitlement to service
connection for lung disability due directly to in-service
tobacco use or secondarily to nicotine dependence, the record
must include competent medical evidence establishing that the
disability resulted from in-service tobacco use, or that
nicotine dependence was acquired or worsened during or as a
result of service and the nicotine dependence caused or
contributed to the lung disability. See Lathan v. Brown, 7
Vet. App. 359, 365 (1995) (holding that, with respect to
questions involving medical causation, credible medical
evidence is required).
The veteran in this case entered active duty in December
1955. He allegedly began smoking during basic training, was
smoking two packs daily by discharge in December 1958, and
continued to smoke two packs daily for 30 years. During a
December 1998 VA examination, the veteran reported that he
had decreased his smoking to a half a pack of cigarettes
daily. Based on the veteran's reported smoking history, the
VA examiner found that the veteran became nicotine dependent
in service. Based on that finding, the RO granted the
veteran service connection for nicotine dependence in a
rating decision dated February 1999. This grant of service
connection still remains in effect.
The veteran allegedly had kidney and heart problems since his
discharge from service. Post-service medical evidence of
record reveals that the veteran received treatment for his
kidneys from 1979 to 1986, at which time he suffered a
myocardial infarction, was diagnosed with hypertension and
was noted to have been on high blood pressure medicine for
one year beginning in 1978. In 1988, he sought treatment for
chest pains and a physician diagnosed, in pertinent part,
coronary artery disease and inadequately controlled high
blood pressure. The veteran has been receiving treatment for
these disorders and has suffered additional myocardial
infarctions since 1988.
There are three physicians who have addressed the etiology of
the veteran's hypertension, coronary artery disease and
myocardial infarctions: Louis Raymond, M.D. the veteran's
private physician, a VA physician, and a VA examiner who
conducted compensation and pension examinations of the
veteran in December 1998 and September 1999. The opinions of
the first two physicians are favorable to the veteran, but
they do not establish that the veteran's service-connected
nicotine dependence more likely than not caused his
hypertension, coronary artery disease and/or myocardial
infarction. The opinions of the third physician are also
favorable to the veteran, because although they too do not
establish that the veteran's service-connected nicotine
dependence more likely than not caused his hypertension,
coronary artery disease and/or myocardial infarction, they
establish that his nicotine dependence contributed to the
development of these disorders.
In October 1998 and June 1999, Dr. Raymond submitted written
statements indicating that it is at least as likely as not
that the veteran became nicotine dependent in service, which
caused him to smoke, resulting in the following medical
conditions: coronary artery disease, hypertension, recurrent
bronchitis, chronic obstructive pulmonary disease (COPD) and
peripheral vascular disease. With regard to the rationale on
which he based his conclusion, Dr. Raymond succinctly noted
the veteran's myocardial infarctions in 1980, 1993, 1996 and
1997, and his condition following several medical procedures
performed in 1996 and 1997. He did not express in any
greater detail his rationale.
In May 1999, Dr. Raymond provided a more comprehensive
statement in support of the veteran's claim. Therein, Dr.
Raymond indicated that the veteran had been a patient for the
past several years. Dr. Raymond also indicated that the
veteran had end stage renal disease that resulted from a
combination of hypertension and probable chronic
glomerulonephritis, a well documented history of coronary
artery disease that was often disabling due to frequent
angina, peripheral vascular disease, and a long-standing
history of tobacco abuse dating back to teenage years. He
concluded that the veteran's tobacco abuse was probably a
contributing factor to his coronary artery disease and
peripheral vascular disease. Dr. Raymond did not opine that
the veteran's tobacco abuse or nicotine dependence more
likely than not caused the veteran's hypertension, coronary
artery disease or myocardial infarctions.
In September 1999, the VA examiner noted above contacted Dr.
Raymond regarding the statements he had submitted. After
discussing with the VA examiner the rationale on which the
statements were based, Dr. Raymond acknowledged that in some
cases, renal disease can cause hypertension, while in other
cases, hypertension can cause renal disease. He clarified
that in order to establish that the veteran's hypertension
caused his renal disease, the veteran's renal biopsies would
have to show arteriosclerosis, which they do not show in this
case. Otherwise, the renal disease might be the cause of the
veteran's hypertension.
In January 1998, a VA physician submitted a written statement
indicating that the veteran had been smoking since the 1950s.
He also indicated that smoking is a risk factor in the
development of coronary artery disease and myocardial
infarctions and could be an element of cause of these
conditions. He explained that the veteran's hypertension was
likely essential in origin, or initially unrelated to
smoking; "however, in about 1989 a left renal artery
stenosis was found making it possible that this, too, could
be connected to tobacco use." He noted that he was unable
to comment on the relationship between the veteran's military
service time and his start of smoking. In October 1998, this
VA physician submitted another statement indicating that it
is at least as likely as not that the veteran became nicotine
dependent in service, which caused him to smoke, resulting in
the following medical conditions: atherosclerotic heart
disease, myocardial infarctions in 1986 and 1993 and
angioplasty/CABG in past. With regard to the rationale on
which he based his conclusion, the VA physician noted "the
fact that smoking is causally related to vascular disease."
He did not express in any greater detail his rationale, nor
did he opine that the veteran's nicotine dependence more
likely than not caused him to develop hypertension, coronary
artery disease and myocardial infarctions.
In December 1998 and September 1999, the veteran underwent VA
examinations by the same VA examiner. Prior to and during
these examinations, the VA examiner reviewed the veteran's
entire claims file, recorded a comprehensive medical history,
contacted Dr. Raymond, the veteran's private physician, with
questions regarding the veteran's medical condition and Dr.
Raymond's written statements, and conducted physical
examinations. Thereafter, the VA examiner listed the
following pertinent facts: (1) The veteran had renal problems
and was diagnosed with proteinuria in 1979; (2) At that time,
he had blood pressure of 144/90; (3) When the veteran was
hospitalized in 1986 for an acute myocardial infarction, it
was noted that he had been on high blood pressure medicine in
1978, for one year; (4) In 1986, prior to this myocardial
infarction, he had been shown to have blood pressure of
164/110 and 190/110; (5) He was started on blood pressure
medication at the time of his myocardial infarction, and in
1988, he had a reading of 164/102; and (6) In 1988, the
veteran underwent a renal biopsy which showed nil disease.
The VA examiner concluded that the veteran's renal disease is
more likely than not to be the major contributing factor in
his hypertension. She also concluded that smoking, while
contributory, is less likely than not to be the major cause
of the veteran's hypertension, and that the hypertension is
secondary to nephrotic syndrome and renal failure. She based
this conclusion on the following facts:
(1) The veteran had hypertension since he presented with
renal disease; (2) Prior to 1986, the veteran had severe
hypertension, which is more consistent with renal disease;
(3) Smoking causes milder elevations in blood pressure; (4)
Hypertension is a well known symptom of nephrotic syndrome;
(5) The veteran's nephrotic syndrome is secondary to his nil
disease, which was established on the renal biopsies; and (6)
The biopsy did not show arteriosclerosis, which would
indicate that the hypertension was causing the renal failure,
rather than the converse.
With regard to the veteran's coronary artery disease and 1986
myocardial infarction, the VA examiner noted that the veteran
had several risk factors for coronary artery disease,
including family history, hypercholesterolemia, hypertension,
and nephrotic syndrome. She concluded that although the
veteran's smoking contributed to his coronary artery disease
and inferior wall myocardial infarction, his hypertension,
which was untreated in 1986, and other cardiac risk factors
contributed to these disorders to a greater extent than the
veteran's smoking.
The aforementioned medical opinions do not definitively
establish that the veteran's service-connected nicotine
dependence more likely than not caused his hypertension,
coronary artery disease and/or myocardial infarction.
However, all of the physicians who offered these opinions
agree that the veteran's nicotine dependence, which led to
long-term smoking, contributed to some extent in the
development of these disorders. In light of this fact, the
Board finds that the evidence supports the veteran's claims
of entitlement to service connection for hypertension,
coronary artery disease/myocardial infarction on the basis
that aggravation of these disorders is proximately due to or
the result of the veteran's service-connected nicotine
dependence. The veteran's claims must therefore be granted
under Allen, 7 Vet. App. at 439.
ORDER
Entitlement to service connection for hypertension secondary
to nicotine dependence is granted.
Entitlement to service connection for coronary artery
disease/myocardial infarction secondary to nicotine
dependence is granted.
WARREN W. RICE, JR.
Member, Board of Veterans' Appeals